A hearing on the motions was held on August 7, 2013. ECF No. 111. After considering the supporting documentation and oral arguments, and for the reasons discussed at the hearing and infra, IT IS HEREBY ORDERED that: plaintiff's amended motion to quash is denied, plaintiff's amended motion for protective order is denied, defendants' motion to compel independent medical examination is granted, and defendants' motion for protective order is denied.

II. PLAINTIFF'S ALLEGATIONS

Plaintiff is a former GS-14 Supervisory Contract Specialist for the Department of the Interior Bureau of Reclamation ("DOI/BOR"). Am. Compl., ECF No. 5 at 4. On January 12, 2012, plaintiff filed her amended complaint alleging violations of (1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; (2) the Rehabilitation Act of 1973, 29 U.S.C. §§ 710 et seq.; (3) reprisal for engaging in protected activities; and (4) a hostile and abusive work environment. Id.

In her second amended complaint, plaintiff makes the following relevant allegations:

Defendant's conduct is discriminatory with respect to my race, color, disability, association with a disabled person, and retaliation for protected activity. Plaintiff contends that DOI/BOR officials discriminated against her by removing her from her Supervisory Contract Specialist position, reassigning her to work for her staff, denying a wage grade increase, revocation/denial of family medical leave and issuing an unsatisfactory performance review because of her race (African-American), her disability (Chronic Fatigue Syndrome with Cognitive Impairment) and her association with a disabled person and caregiver status (her sister). Plaintiff further asserts that management retaliated against her for having complained about such discrimination, and whistleblowing, created a hostile working environment for her caused her to suffer major depression, post-traumatic stress disorder, anxiety and exacerbated her chronic fatigue syndrome and cognitive impairment, and denied her family medical leave act leave for her dependent for whom she stands in loco parentis.

Id. at 2-3 (emphasis added). Plaintiff seeks, inter alia, "[t]he sum of $300, 000.00 in compensatory damages for pain and suffering due to the discrimination and retaliation, according to proof, Medical bills." Id. at 8.

In her initial disclosures, plaintiff identified her psychotherapist, Dr. Thomas Kunzig, as a witness, and indicated she sought damages for medicine, doctors, hospitals and therapy for both past and future medical expenses. ECF No. 88-4 at 14, 16. In defendants' first set of interrogatories, plaintiff was asked to itemize all damages she claims to have sustained as a result of the events she alleged in her first amended complaint. ECF No. 88-5 at 5. In her response, plaintiff itemized the following as "Non-Pecuniary - Pain and Suffering":

As set forth in Federal Rule of Civil Procedure ("Rule") 26(b)(1), "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense.... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Relevancy at this stage of an action has been construed broadly to "encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders , 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor , 329 U.S. 495, 501 (1947)).

However, Rule 45(c)(3)(A) provides that "[o]n timely motion, the issuing court must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a [non-party] to travel more than 100 miles...; (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden." Further, Rule 45(c)(3)(B) provides that "[t]o protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; (ii) disclosing an unretained expert's opinion or information...; or (iii) a [non-party] to incur substantial expense to travel more than 100 miles to attend trial."

A party has standing to seek to quash a subpoena served on a third party, pursuant to Fed.R.Civ.P. 45(c)(3), based on a claim that the subpoena infringes upon the movant's legitimate and privileged interests. United States v. Tomison , 969 F.Supp. 587, 596 (E.D. Cal. 1997) (citations omitted); Moon v. SCP Pool Corp. , 232 F.R.D. 633, 636 (C.D. Cal. 2005). A litigant's privacy interest in her confidential medical records is not absolute but conditional; a limited impairment of the right may be properly justified. Soto v. City of Concord , 162 F.R.D. 603, 618-619 (N.D. Cal. 1995). The determination requires a balancing of plaintiff's privacy rights against defendants' need for the information. Id . (and cases cited therein). "The test... is not relevance-the records may be highly relevant-but the test is whether the privilege has been waived by putting the privileged information at issue.'" E.E.O.C. v. Serramonte , 237 F.R.D. 220, 224 (N.D. Cal. 2006) (citing Fritsh v. City of Chula Vista , 187 F.R.D. 614, 632 (S.D. Cal. 1999) (finding plaintiff did not waive privilege because, among other things, "she does not allege that she suffered a psychiatric injury or disorder as a result of the defendants' conduct; she does not claim to suffer from unusually severe emotional distress; and she does not intend to offer expert testimony regarding her emotional distress")).

With regard to a psychotherapist-patient privilege, the Supreme Court has explicitly recognized the existence of a psychotherapist-patient privilege, which protects all confidential communications between a person and a licensed psychiatrist, psychologist, or social worker. Jaffee v. Redmond , 518 U.S. 1, 8-17 (1996); see also United States v. Chase , 340 F.3d 978, 983-84 (9th Cir. 2003). The privilege may be waived where the patient's specific medical condition is placed into issue. Maynard v. City of San Jose , 37 F.3d 1396, 1402 (9th Cir. 1994) (finding the plaintiff "waived any privilege protecting his psychological records when he put his emotional condition at issue"); EEOC v. Cal. Psychiatric Transitions , 258 F.R.D. 391, 399 (E.D. Cal. 2009).

B. Analysis

The following third party subpoenas are at issue in plaintiff's operative motion to quash:

(2) Custodian of Records, County of Sacramento Department of Health and Human Services, In-Home Supportive Services, Sacramento, CA, seeking "1. Applications by [plaintiff] on behalf of Anastasia V. Adams for services under the In-Home Supportive Services (IHSS) program; 2. Billing records, invoices received, and payments made under the IHSS program for the care of Ms. Adams; 3. Investigative files relating to [plaintiff] or Ms. Adams; 4. Any and all other records." (ECF No. 101-5 at 18-24);

Plaintiff moves to quash defendants' third party subpoenas on the following grounds: (1) the time period is unreasonable; (2) the requests are duplicative of information defendants are already in possession of; (3) the subpoenas seek privileged information of plaintiff's sister, Ms. Adams; (4) failure to provide a reasonable amount of time to reply and improper service; and (5) invasion of plaintiff's privacy because she did not waive the psychotherapist-patient privilege.[2] For the reasons discussed below, plaintiff's motion to quash is denied.

With regard to an unreasonable time period, plaintiff moves to quash medical records that pre-date her employment with defendants. ECF No. 101-4 at 2, 7. However, in her complaint, plaintiff alleges that her employment conditions "exacerbated her chronic fatigue syndrome and cognitive impairment." ECF No. 5 at 3. These allegations place plaintiff's preexisting medical conditions, mental and physical, at issue in this action. Therefore, the timeframe will not be limited to plaintiff's employment with defendants.

With regard to duplicative information, plaintiff argues that defendants already possess some of the information they seek to discover which renders the requests "unreasonably duplicative." ECF No. 101-4 at 5-7. However, the documents plaintiff claims defendants already possess are her personnel files and performance appraisals. Id. at 6-7. These are unrelated to the third party subpoenas at issue which seek plaintiff's medical records and records pertaining to plaintiff's status as a caregiver.

With regard to Ms. Adams' personal information, plaintiff argues that defendants are not entitled to the release of information pertaining to her sister, Ms. Adams. ECF No. 101-4 at 10. However, a party only has standing to move to quash a third party subpoena based on a claim that the subpoena infringes upon the movant's legitimate and privileged interests. Tomison , 969 F.Supp. at 596. Here, plaintiff has failed to establish that she has standing to assert a claim that the subpoenas infringe on Ms. Adams' privileged interests. Moreover, defendants clarified during the hearing that they are not seeking Ms. Adams' medical records, and that any records already produced have been properly redacted. See ECF No. 106 at 3.

With regard to the amount of time provided to reply and proper service, plaintiff argues two procedural deficiencies in defendants' third party subpoenas. ECF No. 101-4 at 2 ("reasonable time to comply"), and 3 (improper service). As discussed above, the general rule is that a party has no standing to move to quash a subpoena served upon a third party except as to privilege claims relating to any documents being sought. Here, plaintiff's arguments are procedural and therefore fail.[3]

Finally, plaintiff argues the subpoenas are an invasion of plaintiff's privacy because she did not waive the psychotherapist-patient privilege. Plaintiff relies on the case of Fitzgerald v. Cassil , 216 F.R.D. 632, 634 (N.D. Cal. 2003), in support of her argument that she "has not made a claim for bodily injury other than that directly and immediately linked to emotional distress, nor received any medical treatment for any purely physical injury." However, plaintiff's argument here fails because she has in fact made a claim for bodily injuries. See ECF No. 88-5 at 6-7 (plaintiff claims damages for, among other things, loss of concentration, TMJ, loss of health, headaches, weight gain, malaise, myalgia, jaw pain, dental pain, joint pain, grinding teeth, and gastrointestinal disorder (diverticulosis)). Moreover, plaintiff has made a claim for more than a garden-variety emotional distress. In her operative first amended complaint, plaintiff alleges injuries in the form of "major depression, post-traumatic stress disorder, [and] anxiety." ECF No. 5 at 2-3.

Although the Fitzgerald case on which plaintiff relies found that the plaintiffs did not waive the psychotherapist-patient privilege, Fitzgerald , 216 F.R.D. at 639, in reaching its holding the court pointed out that the plaintiffs "will not affirmatively rely on any treating psychotherapist, " and plaintiffs "have not alleged a specific psychiatric injury or disorder or unusually severe emotional distress extraordinary in light of the allegations." Id . That stands in sharp contrast to the case here. Thus, Fitzgerald is simply inapposite.

Here, plaintiff has provided her psychotherapist, Dr. Thomas Kunzig, in her initial disclosures as a witness who "[w]ill testify to diagnoses and affects the discrimination and hostile work environment has had on plaintiff." ECF No. 88-4 at 14. Plaintiff has directly placed in issue the treatment, records, opinion and bases for those opinions of Dr. Kunzig. Finally, as discussed above, plaintiff has alleged specific psychiatric injuries such as "post-traumatic stress disorder." ECF No. 5 at 2-3.

The court finds that plaintiff has waived the psychotherapist-patient privilege by placing her medical conditions, both physical and mental, at issue in this action. See E.E.O.C. v. California Psychiatric Transitions , 258 F.R.D. 391, 400 (E.D. Cal. 2009) (Distinguishing Fitzgerald and finding that the psychotherapist-patient privilege was waived by plaintiff because "the emotional distress damages is the crux of Plaintiff's claim. The fact that [plaintiff] is being treated for depression suggests that multiple causation for her emotional distress may exist. The emotional distress she allegedly suffered as a result of the sexual harassment could have been [a]ffected by her depression and [vice] versa. Defendant should be able to determine whether Plaintiff's emotional state may have been [a]ffected by something other than Defendant's alleged actions."); see also Duncan v. Upjohn Co. , 155 F.R.D. 23, 25 (D. Conn. 1994) (good cause found where plaintiff alleged ongoing injury and intended to present expert testimony); Womack v. Stevens Transport, Inc. , 205 F.R.D. 445, 447 (E.D. Pa. 2001) (present inability to work due to psychological injury); Gattegno v. Pricewaterhousecoopers, LLP , 204 F.R.D. 228, 232 (D.Conn. 2001) (plaintiff alleged that she "has suffered and will continue to suffer damages, including... mental anguish, physical and emotional distress, humiliation and embarrassment.").

For the reasons discussed above, the court finds that plaintiff has placed her medical and caregiver records at issue in this action and her motion to quash is therefore denied.

IV. PLAINTIFF'S MOTION FOR PROTECTIVE ORDER

A. Legal Standard

Rule 26(b)(2)(C) provides that "[o]n motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues."

B. Analysis

Plaintiff moves the court for a protective order on the grounds that (1) the documents defendants seek are duplicative; (2) the documents seek official personnel files which are an invasion of her privacy; (3) improper service; and (4) some documents are irrelevant. Plaintiff also seeks to limit the date range of the documents and to have the documents sealed. To the extent plaintiff's arguments have been addressed in the analysis above regarding her motion to quash, the court will only briefly address them here.[4] For the reasons discussed below, plaintiff's motion for a protective order is denied.

With regard to duplicative documents and official personnel records, plaintiff argues the personnel files defendants seek to discover have already been received and are protected. ECF No. 100 at 7-8. However, as discussed above, the subpoenas at issue in this court seek the discovery of plaintiff's medical records and records pertaining to plaintiff as a caregiver which are unrelated to plaintiff's personnel files.[5]

With regard to improper service, plaintiff argues the third party subpoenas fail because they were not served properly. ECF No. 100 at 9. As discussed above, plaintiff does not have standing to object to the method of service as the subpoena was directed to a third party, not plaintiff. Tomison , 969 F.Supp. at 596.

With regard to relevance, plaintiff argues that the documents pertaining to her caregiver status are irrelevant to this action. ECF No. 100 at 12. However, plaintiff has put her caregiver status at issue. In her operative first amended complaint, plaintiff alleges she was discriminated against based on "her association with a disabled person and caregiver status." ECF No. 5 at 3. Plaintiff also alleges she was "denied her family medical leave act leave for her dependent." Id. at 3. The documents defendants seek are relevant to at least some of plaintiff's allegations. Fed.R.Evid. 401; Fed.R.Civ.P. 26(b)(1) ("parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense"); Zoom Imaging, L.P. v. St. Luke's Hosp. and Health Network , 513 F.Supp.2d 411, 413 (E.D. Pa. 2007) ("Even if it may not be admissible at trial, [] evidence is discoverable if it appears reasonably calculated to lead to the discovery of admissible evidence."). Moreover, as clarified during the hearing, because plaintiff has alleged she was discriminated against based on her status as a caregiver, defendants are entitled to seek production of the documents related to her caregiver status in an effort to defend these allegations by showing that their actions were based on "genuine performance issues." ECF No. 106 at 5-6 (positing that, for example, plaintiff may not have properly performed her work duties because she was "simultaneously working 70 hours a week at another job"). Whether this defense is plausible is a question to be addressed at a later stage. At this stage in the litigation, defendants are entitled to discover these records because they are relevant to plaintiff's allegations as well as defendants' defense thereto.

Plaintiff's request to seal the documents produced in response to defendants' third party subpoena is denied. As the court noted at the hearing, these discovery documents are not to be filed with the court until such times as they are offered in support of or opposition to a motion or as evidence at trial. E.D. Cal. Local Rules 250.1(a), 250.1(c), 250.3(c), 250.5(c); See also Zoom Imaging, L.P. , 513 F.Supp.2d at 413. If defendants choose to submit any of the documents obtained through discovery, they are bound to redact the documents in accordance with the Local Rule 140. Moreover, plaintiff can move to seal any submitted records at that time. However, plaintiff is reminded of the strong presumption in favor of access of judicial records. See Kamakana v. City and County of Honolulu , 447 F.3d 1172, 1178-79 (9th Cir. 2006). At this point, the court must merely determine whether defendants are permitted to discover plaintiff's medical and caregiver records. As discussed above, they are.

Finally, plaintiff argues that defendants' discovery requests should be limited to two different claimed time periods.[6] ECF No. 100 at 3. However, in her operative first amended complaint, plaintiff seeks damages for exasperated preexisting conditions and for future medical bills which would indicate a broad range. Therefore, the court finds a limited date range is not reasonable, given plaintiff's allegations.

For the reasons discussed above, the court finds the documents defendants seek are relevant and not protected by a privilege as plaintiff has put her physical and mental health and caregiver status at issue. Therefore, plaintiff's motion for a protective order is denied.

V. DEFENDANTS' MOTION TO COMPEL MEDICAL EXAMINATION

A. Legal Standard

Rule 35(a) provides, in relevant part:

When the mental or physical condition... of a party... is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner.... The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

"The in controversy' and good cause' requirements of Rule 35... are not met by mere conclusory allegations of the pleadings-nor by mere relevance to the case-but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination." Schlagenhauf v. Holder , 379 U.S. 104, 118 (1964). "A plaintiff in a negligence action who asserts mental or physical injury... places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury." Id. at 119. That principle applies with equal validity here.

B. Analysis

Defendants argue that an independent medical examination pursuant to Fed.R.Civ.P. 35(a) is appropriate, given the allegations in plaintiff's first amended complaint. Defendants argue that plaintiff's specific allegations of psychological injury, and the fact that she sought treatment for the same, puts her mental state at issue. Defendants have scheduled an independent medical examination in Maryland for August 21, 2013.[7] ECF No. 112. Following the hearing on defendants' motion, plaintiff filed an opposition brief as instructed at the hearing. ECF No. 128. She argues that "[a]n open ended invasive test with no stated parameters or boundaries is an invasion of personal privacy" and traveling to Maryland presents a hardship for her. Id.

For the reasons discussed below, defendants' motion to compel independent medical examination is granted, and plaintiff shall be ordered to appear at the independent medical examination on August 21, 2013.

In this action, plaintiff is seeking "$300, 000.00 in compensatory damages for pain and suffering due to the discrimination and retaliation, according to proof, Medical bills." ECF No. 5 at 8. Plaintiff's damages include past and future medical bills. See ECF No. 88-4 at 16 (itemizing damages including past medical bills in the amount of $45, 875 and future medical expenses in the amount of $458, 749.98). Plaintiff also alleges that the discrimination and hostile work environment "exasperated her chronic fatigue syndrome and cognitive impairment." ECF No. 5 at 3. As noted above, plaintiff has alleged the following physical and psychological injuries: "major depression, post-traumatic stress disorder, anxiety and exacerbated... chronic fatigue syndrome and cognitive impairment." ECF No. 5 at 3. Plaintiff also claims the following physical and psychological injuries:

ECF No. 88-5 at 6-7. As discussed in the court's analysis above, the fact that plaintiff alleges numerous health-related injuries, sought treatment for these injuries, and seeks damages for past and future medical expenses, puts plaintiff's mental state "genuinely in controversy." Schlagenhauf , 379 U.S. at 118. Defendants must respond to plaintiff's allegations and are entitled to conduct a professional examination of plaintiff, including the taking of a careful and detailed history of her symptoms, past stressors and treatment, to determine the extent of the alleged injuries, and whether other factors may have contributed to or exacerbated them. See Javeed v. Covenant Med. Ctr., Inc. , 218 F.R.D. 178, 181 (N.D. Iowa 2001) (finding good cause for Rule 35(a) exam where plaintiff alleged extreme emotional distress and sought mental health care therefor); Bethel v. Dixie Homecrafters, Inc. , 192 F.R.D. 320, 323 (N.D.Ga. 2000) (good cause for a Rule 35 mental health exam because the defendants showed that questions remained whether the plaintiff's mental health problems resulted from defendant's actions or from other life events).

In her opposition, plaintiff also expressed concern regarding the location of the examination. ECF No. 128. Plaintiff states that she has Achilles bursitis tendonitis and is required to wear a boot to immobilize her foot. Id . Plaintiff provided several pages of medical records to support her condition. ECF No. 128-1. In particular, plaintiff provided a May 17, 2013, verification of treatment from her physician indicating that plaintiff "is unable to drive with the boot on and has difficulties driving with it off." Id. at 4. The verification was prepared ninety days ago, and requested telework for plaintiff until June 3, 2013. Id . The court notes that plaintiff's treating physician requested telework for plaintiff for only two weeks, and plaintiff did not provide any additional information regarding her treating physician's re-evaluation of her condition. These dated medical records are insufficient to support plaintiff's hardship argument.[8] Moreover, defendants have already extended plaintiff an extraordinary accommodation by setting the examination in a city reasonably close to where plaintiff resides rather than in this district. The court will not order defendants to locate a qualified doctor in plaintiff's state when defendants have already made a good faith effort to accommodate plaintiff's location by not moving this court to order plaintiff to appear for an independent medical examination in California, where plaintiff initiated this litigation. The location for the examination is in reasonable proximity to the location where plaintiff resides and any inconvenience or burden from driving to the exam is minimal in contrast to the burden plaintiff will face by proceeding to trial in this case.

For the reasons set forth above, defendants' motion for an independent medical examination is granted, and plaintiff shall be ordered to appear on August 21, 2013, for the examination.

VI. DEFENDANTS' MOTION FOR PROTECTIVE ORDER

In their motion, defendants seek an order requiring plaintiff "(1) to obtain court approval prior to filing further motions to quash subpoenas and (2) to withdraw the District of Columbia and District of Maryland motions to quash." ECF No. 103 at 2. For the reasons discussed below, defendants' motion for protective order is denied.

Defendants seek an order directing plaintiff to withdraw her out of district motions to quash. However, as defendants correctly pointed out in their original opposition to plaintiff's motion to quash, plaintiff's motion to quash subpoenas issued in another district were not properly before this court. See S.E.C , 656 F.3d at 832. It is appropriate, then, for plaintiff to pursue her motions to quash in the district court that issued the third party subpoenas. While the court has found that the records sought by defendants at issue here are relevant and not protected by a privilege because of plaintiff's allegations, plaintiff did not have the benefit of this finding prior to filing her motions to quash. Given the court's holding today, plaintiff is free to withdraw her motions to quash in the District of Columbia and District of Maryland. However, the court will not order her to do so.

Finally, the court will not order plaintiff to obtain court approval before filing further motions to quash. The court has ruled that the documents are discoverable and plaintiff should take this holding into consideration when considering filing any future motions to quash.

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